How many days can I remain in the U.S. after filing an I-526 petition?

I am from India and plan on filing an I-526 petition. I have learned that it will take nine months to approve. My plan is to apply I-526 by visiting the U.S. because my children are on F-1 visas and my wife is on a B-1 visa. I am a medical practitioner and need to be in home country as early as possible, so my question is how many days I have to stay in the U.S. after filing the I-526?

Answers

There is no requirement that you be physically present in the United States to file the I-526 petition and, in your situation, it may be preferable to file while you are in India. Currently, due to the volume of I-526 petitions filed, the current processing time published by the USCIS is approximately 14 months. After the I-526 is approved and a visa is currently available, you might choose to obtain your immigrant visa in India through consular processing. If your spouse and children are in the United States when the visa becomes available to you, they might choose to remain and change their status through USCIS. Once you enter the United States on your EB-5 immigrant visa, you may leave immediately, provided you retain your U.S. residence to which you return within six months. Should you need to be out of the United States for a single period of more than six months, permission to return may be obtained by filing Form I-131. If you are out of the United States for more than one year without permission to return, the law automatically terminates your U.S. permanent resident status.

You do not need to be in the U.S. to file an I-526. Filing or approval of your I-526 does not provide you legal immigration status or grant you any immigration benefits. Once your I-526 is approved, you will go through consular processing to receive your immigrant visa to the U.S. based on the approved I-526 and enter the U.S. as a conditional permanent resident. Presently, I-526 processing takes on average nine months and the consular process takes on average three to six months.

You do not need to be in the U.S. at all, unless you plan on adjusting to conditional permanent residency (you need to be in legal US status to do so). Otherwise, you can get your conditional permanent residency through the U.S. consulate.

The processing times of the adjudication of I-526 petitions are not predictable. Besides if the I-526 petition is approved while you are out of the U.S., you should not enter the U.S. under a non- immigrant visitor status and apply for conditional permanent residency status in the U.S.

There is no requirement that you remain in the U.S. at any part of the filing process of the I-526. It can even be filed while you are abroad. After becoming a lawful permanent residence through the EB-5 immigrant investor processing, is when you will have to maintain residence in the U.S.

There is no rule about spending time in the U.S. during the time your I-526 is pending. The I-526 filing or approval does not allow you to stay in the United States, nor does it grant any immigration benefit. If you are in the United States in valid nonimmigrant status when your I-526 petition is approved, then you may file your I-485 application for adjustment of status. Otherwise, you must complete immigrant visa processing at the U.S. embassy or consulate in your home country.

You do not need to be in the U.S. to file the I-526 and your authorization to remain is related to the B-2, not the I-526 so you can stay whatever amount of time is granted at the time of entry. (Be sure to print out the I-94 card).

Sufen Hilf

Immigration Attorney

Answered onApril 25, 2014

Filing an I-526 will not give you any benefits in terms of staying in the U.S. legally. How many days do you have to stay? I guess it depends on the processing time of your I-526. You cannot file for adjustment until your I-526 is approved.

If you are going to do the consular processing after the I-526 gets approved, you do not have to stay in U.S. at all. If you wish to file the Adjustment of Application (I-485), then you must stay in valid visa status and in the U.S. until the I-526 is approved and I-485/I-131/I-765 is filed and the travel permit (I-131) received. How you and your wife could stay for at least nine months under B-1/B-2 in valid status is different matter entirely.

Your conditions of presence in the U.S. are distinct and apart from filing of your I-526. At the time of entry, you will be admitted by the CBP officer for the certain amount of time (normally, not exceeding 180 days). This time will be controlling. Since there is no concurrent filing for I-526 and adjustment of status at this time, mere filing of I-526 does not change anything in terms of your presence in the U.S.

Yes, it does take about nine months to approve an I-526. However, there is no requirement that you need to stay in the U.S. after filing the I-526. You can just file your I-526 and promptly leave the U.S. to run your business in India. Advisably, get in touch with an EB-5 attorney who can make the necessary arrangement for you.

You do not need to file the petition while in the U.S. You can file while in India. There are certain immigrant intent issues you should consider if, after filing the petition, you decide to visit the U.S. I suggest you discuss this issue with an EB-5 immigration attorney.

The filing of the I-526 does not give you permission to remain in the U.S. If you want to remain in the U.S. while your I-526 is pending, you must maintain some independent non-immigrant status.

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